Federal Court

Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Immigration

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SELECTION AND ADMISSION

Determination of inadmissibility could not be re-litigated by parties or re-determined by officer

Foreign national was citizen of Sri Lanka and United Kingdom who had applied for permanent resident visa. In 2010 officer found foreign national inadmissible pursuant to s. 34(1)(f) of Immigration and Refugee Protection Act (Can.) as officer found that foreign national had been member of Liberation Tigers of Tamil Eelam. Application for judicial review of that decision was dismissed. Foreign national submitted another application for permanent residence in Canada in August 2011, in which he denied having previously made permanent residence applications which were refused. Officer sent foreign national fairness letter as result of misrepresentation. In 2013 officer found foreign national inadmissible pursuant to s. 34(1)(f) of Immigration and Refugee Protection Act and found insufficient humanitarian and compassionate grounds to overcome his inadmissibility. Officer refused application and foreign national applied for judicial review. Application dismissed. Determination of inadmissibility in 2010 stood and could not be re-litigated by parties or re-determined by officer. Three preconditions to operation of doctrine of issue estoppel are that same question has previously been decided, prior judicial decision was final, and parties to both proceedings are same. As all three pre-conditions to operation of issue estoppel were present in this case, officer erred by not considering doctrine of issue estoppel with respect to 2010 decision of Federal Court. Federal Court denied leave to foreign national in respect of 2010 refusal of his permanent residency application pursuant to s. 34(1)(f) of Act and that decision was final one. It would not be appropriate to send this matter back for re-determination in circumstances of this case because officer could not have come to different conclusion. While court has discretion to relieve against harsh effects of issue estoppel where usual operation of doctrine would work injustice, it is not clear that administrative tribunal has same discretion to override normal operation of issue estoppel in respect of prior court decision. Assuming that administrative tribunals have discretion to override issue estoppel in respect of prior court decisions, this discretion would be even more restricted than court’s discretion to do so, which itself is very limited in application and only occurs in the rarest of cases. Balasingham v. Canada (Minister of Citizenship and Immigration) (Apr. 14, 2015, F.C., Danièle Tremblay-Lamer J., File No. IMM-2616-14) 253 A.C.W.S. (3d) 909.

Citizenship

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OFFENCES

Sufficient evidence that applicant attempted to organize, induce, aid or abet coming into Canada of imposter

Applicant was Canadian citizen. In 2010, he took business trip to Belgium and Germany with his friend and business partner, L. Their travel was routed through Istanbul, Turkey. Turkish authorities did not allow L to board plane due to a belief he was imposter. L was returned to Germany. Citizenship and Immigration Canada (“CIC”) investigated and concluded that L was being impersonated by another individual using L’s Canadian passport. In 2012, CIC revoked applicant’s passport and denied him access to another passport until 2015, after concluding applicant had used his passport while acting as escort to assist unidentified individual unlawfully using L’s passport to board flight to Canada. Applicant sought judicial review of CIC decision. Application dismissed. CIC had jurisdiction to revoke applicant’s passport and deny him passport services on basis that he committed act that would constitute indictable offence if committed in Canada. Under s. 10(2)(b) of Canadian Passport Order, meaning of word “committed” did not require conviction as precondition to revocation of passport, as mere commission of act that constituted offence was sufficient. There was sufficient evidence for CIC to reach conclusion that applicant attempted to organize, induce, aid or abet coming into Canada of imposter. CIC made no reviewable error in its assessment of evidence. Applicant was accorded procedural fairness. Evidence disclosed to applicant was information CIC relied on to make its decision and that information was sufficient to support CIC’s conclusion. Gomravi v. Canada (Attorney General) (Apr. 17, 2015, F.C., Martine St-Louis J., File No. T-499-14) 253 A.C.W.S. (3d) 774.

Immigration

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REFUGEE STATUS

Conclusion that claimant did not work for Fund unreasonable

Refugee claimant was citizen of Kingdom of Cambodia who alleged fear of persecution because of his work as activist for Cambodia Global Fund in Cambodia. Claimant alleged that he was assistant director of Cambodia Global Fund from 2007 to 2011. Board found that claimant’s career as activist with Cambodia Global Fund was unsupported by any trustworthy corroborative evidence. Board found that website for Cambodia Global Fund, mentioned in letter from its alleged Executive Director, did not exist, although claimant’s lawyer provided copies of website. On basis of apparent non-existence of website, board concluded that claimant did not work for Cambodia Global Fund. Board denied claim. Claimant applied for judicial review. Application granted. Despite concluding that website did not exist, board went on to make numerous findings on basis of exhibit that was purported to be printout of website, including finding that organization was based in United States and not in Cambodia. Board’s finding that organization was not based in Cambodia ignored substantial amount of evidence in record that pointed to existence of Cambodia Global Fund in Cambodia. Board also had before it evidence that one of claimant’s visa sponsors was Cambodia Global Fund. On basis of all evidence that was before board, its conclusion that claimant did not work for Cambodia Global Fund was unreasonable, and this conclusion tainted whole decision. Cumulative effect of board’s erroneous findings of fact that were central to board’s credibility finding rendered decision unreasonable. Decision was set aside as it did not fall within range of possible, acceptable outcomes. Yi v. Canada (Minister of Citizenship and Immigration) (Mar. 27, 2015, F.C., Danièle Tremblay-Lamer J., File No. IMM-5928-14) 252 A.C.W.S. (3d) 798.

Air Law

Applicant requested injunction to silence issuance of Civil Aviation Safety Alert (CASA) that Minister of Transport concluded was necessary as safety measure for security of flying public. CASA was to address risk from helicopter engine and drive train parts that applicant had allegedly improperly certified. Minister said parts were already in use around world, failure of which could lead to catastrophic failure. Interim confidentiality order was granted at outset for issues to be canvassed to ensure that applicant’s commercial interests were not jeopardized. Application dismissed. Court did not find serious issue to be tried existed that would put into question reasonableness of CASA. Plans submitted by applicant were not found to be adequate to justify risk which would ensue. Applicant admitted that it decided not to comply with request for listing of undocumented parts which it had certified due to expense. Irreparable harm to public aviation safety outweighed any commercial interest of applicant. Injunctive relief was denied and confidentiality order discontinued. Rotor Maxx Support Ltd. v. Canada (Minister of Transport) (Apr. 24, 2015, F.C., Michel M.J. Shore J., File No. T-2586-14) 252 A.C.W.S. (3d) 811.

Civil Procedure

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COSTS

Delay in provision of redacted documents to citizenship applicant did not justify solicitor-client costs

Citizenship judge rejected application as permanent resident did not meet residency test. Permanent resident applied for judicial review which was dismissed. Permanent resident’s File Preparation and Analysis Template (FPAT), document was originally redacted from Certified Tribunal Record and then confidentially disclosed to permanent resident’s counsel. Minister had argued against disclosure of FPAT as disclosure of FPAT document could lead to individuals learning methods of fraud detection used by government. Permanent resident requested costs on solicitor-client basis regardless of outcome of judicial review. Request for costs denied. There was no evidence before court that Minister’s refusal to disclose redacted documents unnecessarily lengthened proceedings. Permanent resident’s basis for requesting solicitor-client costs was that he asked for redacted documents to be disclosed and Minister defended redactions. This was not basis for solicitor-client costs. Minister was entitled to object to disclosure of certain information pursuant to R. 318(2) of Federal Court Rules (Can.), and to defend his position in good faith. Minister did not unduly lengthen or delay proceedings. It took approximately three months before counsel for permanent resident was able to view redacted documents. This delay hardly rose to level of “reprehensible, scandalous or outrageous conduct” that was necessary to justify costs on solicitor-client basis. Boland v. Canada (Minister of Citizenship and Immigration) (Mar. 25, 2015, F.C., Yves de Montigny J., File No. T-1090-14) 252 A.C.W.S. (3d) 405.

Administrative Law

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JUDICIAL REVIEW

Press release was not decision and had no legal effect

So-called “decision” was made public in press release by Canadian Judicial Council. Press release announced members of inquiry committee established to review conduct of justice. Independent counsel was appointed. Mandate of inquiry committee was to review all issues and submit report to Canadian Judicial Council. Applicant sought judicial review. Respondent sought to strike out notice of application for judicial review asserting press release was not reviewable decision. Motion granted. Application for judicial review disclosed no reasonable cause of action, because it concerned press release, which was not decision and had no legal effect. No decision was made by inquiry committee. Girouard c. Conseil Canadien de la Magistrature (Dec. 5, 2014, F.C., Luc Martineau J., File No. T-1557-14) 252 A.C.W.S. (3d) 384.

Privacy Legislation

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ACCESS TO INFORMATION

Preparation fees respecting electronic records were authorized

Canadian citizen made request for three sets of records. Records existed in electronic form and did not have to be created from other records by computer. Human Resources and Skills Development Canada provided first set, but calculated fees of $4,180 for other two and required prepayment. Requestor complained to Officer of Information Commissioner. Parties brought reference. Current information officer asserted that fees to search for and prepare disclosure information found in governmental electronic records could be levied only with respect to electronic records that could be created with aid of computers. Attorney General asserted that fee could be levied irrespective of whether or not record currently existed. Electronic records were not non-computerized records for purpose of search and preparation fees authorized by s. 11(2) of Access to Information Act (Can.) and Access to Information Regulations (Can.). Regulations were amended in past and there was nothing to prevent further amendment now. Canada (Information Commissioner) v. Canada (Attorney General) (Mar. 31, 2015, F.C., Sean Harrington J., File No. T-367-13) 252 A.C.W.S. (3d) 598.